Michael Zander QC, now Emeritus Professor at the LSE, was a forthright and eloquent critic of the Woolf reforms which led to the Civil Procedure Rules in 1999. Few took much notice of his predictions, least of all Lord Woolf. I was amongst the vast majority who ignored him, won over I think in retrospect, by Woolf’s eloquence and industrious decency in tackling the twin evils of delay and cost.
It was a shock to open the rather large new rule book and discover that all Woolf’s emphasis on the role of technology – particularly in respect of disclosure – had been reduced to a single reference to the word in the overriding objective. I also recall a sense of growing unease on seeing the sum total of the new burdens which fell on practitioners at the early stages of a case – each of them had been widely debated in the run-up to the final version of the rules, but seeing them altogether simply did not square with the fact that relatively few cases went to trial anyway. How could it be right to impose on every party to every case a set of duties and obligations designed to reduce a burden which was irrelevant to most cases even under the old rules?
I suspect that I quelled these doubts by accepting that the old approach – where the biggest hurdle before issuing proceedings was persuading the accounts department to part with the £20 needed to issue the writ – perhaps needed a little more externally-imposed structure.
Michael Zander has now written an article for New Law Journal setting on why he feels that his original fears were justified. Called More Harm than Good, it argues persuasively (not that I need any persuading by this stage), that the increase in costs and the failure to tackle delay were an inevitable result of structural and logical defects in the CPR. The hoped-for emphasis on stronger case management has, Zander suggests, merely led to more work for lawyers. The wider discretion given to judges has, he says, led to inconsistent judicial decisions, with parties less able to predict what the outcome will be of procedural applications. He mentions in passing that there has been a 550% increase in the number of pages of rules.
Parts of this are more persuasive than others. Lord Woolf himself is reported as thinking that judges have too little discretion, not too much. Neither position looks right to me, at least in respect of disclosure – it ought to be possible to give judges wide discretion whilst still achieving that measure of consistency and predictability which parties need in order to have meaningful discussions between themselves. The problem in relation to disclosure is that few of the judges have much understanding of what the problems and solutions are, and do not impose the reasonably sensible provisions in the Practice Direction to Part 31 which was shoe-horned into the rules in 2005 to remedy the omission from the CPR of any guidance on handling large document volumes.
Doubtless the PD gets lost, for judges as well as for practitioners, amidst the vast increase in the rules to which Michael Zander refers. If judges do not impose the PD, the parties are unlikely to volunteer for what may appear as yet another up-front burden amidst all those which are enforced (I stress the words “may appear” – of all the tasks which ought to be undertaken at the start of proceedings, finding out what documents your client has and what sources your opponent has seems rather more valuable than many of the other procedural hoops and hurdles imposed by the CPR). The early case assessment which can follow from this (and which can only follow from this) is, after all, what most clients actually want when they instuct a solicitor to bring or defend proceedings.
Michael Zander makes little reference to the other big issue – that the judicially-imposed pursuit of settlement through Mediation and other forms of ADR has resulted in an almost deliberate relegation of the court’s duty to seek out and impose the fastest and cheapest route to trial – see on this subject my article Mediation – not about just settlement but just about settlement. As things stand, parties are more fearful of costs penalties for failing to try and settle than they are of costs actually incurred in fighting. It is the duty of the state (and therefore of the courts) to provide a boxing ring and a referee. If the rigours of judge-led litigation prompt parties to settle, then that is fine, as long as what they are thereby fleeing is as efficient a forum as possible. At the moment, that is not what we have, for reasons whch are partly structural (Zander’s points about the CPR) and partly to do with inefficient handing of what is very often the biggest costs component – disclosure.
The Civil Justice Commission is reviewing the effect of the Woolf reforms. Lord Justice Jackson is reviewing litigation costs generally. Last year’s cases – Digicel, Abela and Hedrich, plus some waves from across the Atlantic which similarly emphasise co-operation and competence – show that a judge who rolls up his sleeves can impose a focus on doing the job properly within the existing rules, and can do so tomorrow.